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Two paths to Transitional Justice: A comparison of the European Court of Human Rights and the Human Rights Committee’s approaches to Bosnian Enforced Disappearance Cases

Betül Durmuş; Ph.D. Candidate, Koç University Law School

Following its independence from the Socialist Federal Republic of Yugoslavia in March 1992, Bosnia and Herzegovina went through three and a half years of armed conflict, which ended with the signing of the General Framework Agreement for Peace in Bosnia and Herzegovina in December 1995. Throughout this conflict, the country’s population was subjected to widespread and grave human rights violations, including extrajudicial killings, enforced disappearances, and the forced displacement of thousands of people. Today, the large number of enforced disappearance cases is one of the most urgent and demanding challenges faced by the instituting transitional justice in Bosnia and Herzegovina. According to a report by the Working Group on Enforced or Involuntary Disappearances (WGEID) released in 2010, approximately one third of the 28,000 to 30,000 persons that disappeared during the conflict remain missing.

The European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee (HRC) have been the main judicial fora for complaints by families who continue to have no information about the whereabouts and fate of their loved ones. In a four-year period, from September 2011 to November 2015, 19 decisions were issued in these cases: nine by the ECtHR and ten by the HRC. Despite the similarities in the facts and claims presented in relation to the victims, the determinations reached by the ECtHR and HRC in these cases differ. This difference becomes apparent considering that the HRC found at least one violation in each case before it, whereas the ECtHR found most cases manifestly ill-founded (Palić is the only exception where the Court examined the merits, but found no violation). This post explores the underlying reasons for the difference in approaches and determinations reached by the ECtHR and the HRC in these cases.

In what follows, I first examine the diverging paths taken by the ECtHR and HRC in enforced disappearance cases, observing how this divergence is attributable to differences in the perception of the concept of transitional justice and the nature of the processes adhered to by these institutions. In relation to the three aims of transitional justice – justice, truth, and reparation – I argue that while the ECtHR focuses on the adequacy of time and resource allocation to transitional justice processes by Bosnia and Herzegovina, the HRC is concerned with the actual injury incurred by the individual complainant, irrespective of the broader context of that harm and the prospective success of ongoing State processes intended to offer a remedy to that individual and others in his or her position. In other words, the ECtHR’s approach prioritizes the systemic and contextual transitional justice efforts, whereby alleged individual violations are relativized and can be attenuated by the overall progress of transitional justice processes. On the other hand, the HRC's approach focuses on the injury to victims separately from the broader aims or foreseen effects of processes being implemented by the duty-bearing State. By way of conclusion, I offer a reflection on the respective prospects and perils of these diverging approaches.

Justice: Does Transitional Context Matter?

For the purposes of defining the primary aim of justice, this post employs its retributive meaning referring to the obligation to investigate grave human rights violations, and prosecute and punish perpetrators. Both the ECtHR and HRC accept that the duty to investigate is a procedural obligation of means and not of results, which should not be interpreted as imposing a disproportionate burden on State authorities. However, in relation to the enforced disappearance cases in question, they differ in the application of this standard in two respects.

Firstly, they diverge on how to assess the adequacy of the criminal justice system in Bosnia and Herzegovina in dealing with grave human rights violations. The ECtHR applies a temporal limitation to such cases. Although the European Convention on Human Rights (ECHR) entered into force with respect to Bosnia and Herzegovina in 2002, the ECtHR has adopted a policy approach to such cases and has looked exclusively at the potential inactivity of relevant authorities in the post-2005 period when, it argues, the judicial authorities became capable of effectively dealing with serious violations (see Palić, par. 70; Fazlić and others, par. 39; Munira Mujkanović and others, par. 41). The ECtHR thereby examines whether there has been any inactivity of the investigative and judicial authorities after 2005, even though in some cases, the authorities became aware of the case prior to that date (see Šeremet; Stjepanović; Fazlić and others). The HRC, by contrast, attributes less significance to the capabilities of the justice system, giving more weight to considerations such as time-lapses, both since the person was last seen alive, and since the time after the authorities became aware about the case (see Ičić, par. 9.6.; Dalisa Dovadžija and Sakiba Dovadžija, par. 11.6.; Kadirić, par. 9.5; Milan Mandić, par. 8.4.).

Secondly, they diverge in the way they assess the impact of the general policies or measures adopted by Bosnia and Herzegovina to govern the transitional regime with respect to individual cases. The ECtHR, to begin with, emphasizes the “special circumstances prevailing in Bosnia and Herzegovina" and the difficulty of dealing with a large number of war crimes pending before domestic courts (see Demirović and others, par. 30-35; Muratspahić, par. 29-34; Zuban and Hamidović, par. 30-35). The special emphasis on the post-war context has been the basis of the Court’s due regard for general policies. This is particularly notable in the ECtHR’s endorsement of the National War Crimes Strategy, which was adopted in 2008, with an aim to process the most complex, high-priority cases by the end of 2015, and others by the end of 2023. The ECtHR found this time-frame reasonable and held that the authorities were acting in line with its implementation.

This latter assessment alone led the Court to conclude that Bosnia and Herzegovina fulfilled the requirements of promptness and expeditiousness under its obligation to investigate, irrespective of its failure to identify the exact perpetrators in the individual cases (see Žerajić and Gojkovıć, par. 32; Demirović and others, par. 34; Stjepanović, par. 28). In contrast, the HRC, recognizing the difficulties faced by Bosnian authorities, held that these were not sufficient to overrule a well-substantiated rights violation in an individual’s complaint. While the arguments presented by Bosnia and Herzegovina to both fora are similar, the HRC found that the information provided by Bosnia and Herzegovina to be “very limited and general”, and decided that Bosnia and Herzegovina failed to provide the necessary “specific and relevant information” on the fate and whereabouts of the missing person (see Dovadžija, par. 11.7.; Kadirić, par. 9.5.). Besides, in none of the cases, the HRC explicitly made statements endorsing the National War Crime Strategy.

These distinctions indicate that the very object and purpose of retributive justice processes is understood and treated differently by these two adjudicative bodies. They differ on the weight they assign to the ongoing general measures of conduct adopted by State authorities.

Truth: Victims’ Right to Information

The second element of transitional justice is ‘truth’ as understood in its individualized sense; the rights of victims to access information rather than the collective rights of a society to know the truth about past grave human rights violations. The General Comment of the WGEID defines it as “the right to know about the progress and results of an investigation, the fate or the whereabouts of the disappeared persons, and the circumstances of the disappearances, and the identity of the perpetrator(s)”. The ECtHR and the HRC hold opposing views on the purpose and the means by which truth should be established.

The two bodies diverge on the meaning and scope of the rights of individual victims to access information pertaining to the investigation from the perspective of individual victims. According to the ECtHR, this “does not require applicants to have access to police files, or copies of all documents during an ongoing inquiry, or for them to be consulted or informed about every step.” (see Stjepanović, par. 27) The Court also underlines the risk of revealing the identity of suspects. For instance, in the absence of sufficient evidence, families may assume that the suspects are in fact guilty, and this may lead to “unpleasant repercussions” (see Muratspahić, par. 32; Munira Mujkanović and others, par. 40). It is important to note that the Court regards the aim of securing peace as equally important as the aim of revealing the truth. Conversely, the HRC regards the victims as active agents in the processes of investigation. It holds that authorities must provide information about the progress of the investigation promptly to enable the families to contribute to the investigation with their own knowledge (see Prutina et al., par. 9.6.; Durić, par. 9.6.; Selimović et al., par. 12.6.).

Moreover, the two bodies hold different views on the investigative authorities’ ex officio duty to inform the next of kin. The ECtHR once again takes into account the special circumstances in Bosnia and Herzegovina, and holds that given the large number of cases, the use of press releases and group meetings, instead of individual-specific information, is reasonable (see Stjepanović, par. 27). In most cases, the Court requires the applicants to prove that their requests to obtain information are rejected by the authorities; in other words, the authorities are not bound by an ex officio duty to promptly engage all families concerned (see Demirović and others, par. 33). Conversely, the HRC does recognize this duty and is quick to condemn the authorities for the limited and general information they provide to families. It also notes that providing information only upon the families’ request does not bode well with the ex officio duty to inform (see Rizvanović, par. 9.5.).

These findings indicate that the ECtHR has adopted a narrower understanding of the victims’ rights to information alongside a more judicious view of the responsibilities of the authorities towards victims, compared to that of the HRC. The ECtHR grants States a wide margin of discretion in deciding the appropriateness of the measures to provide information about current cases and recognizes that ongoing transitional processes place overwhelming demands on the authorities.

Reparation: How to Compensate for the Harm?

As recognized in the UN Basic Principles and Guidelines on the Right to Remedy and Reparation, compensation is one of the essential components of reparation for gross human rights violations. It should cover physical and mental forms of harm, lost opportunities, material and moral damages, and costs for legal or expert assistance. The ECtHR and HRC also adopt different approaches to handling cases involving claims by victims of enforced disappearances that they have faced obstacles when trying to access fair compensation.

A common obstacle raised by victims in cases before the ECtHR and HRC concerns the delays in establishing the Fund for Support to the Families of Missing Persons of Bosnia and Herzegovina (the Fund). The Constitutional Court of Bosnia and Herzegovina, in many cases, has denied victims’ requests for compensation by assuring them that they would receive financial support from the Fund (see Durić, par. 2.6.; Kadirić, par. 2.11; Fazlić and others, par. 11). The HRC regards the delay in the establishment of the Fund as sufficient to substantiate a violation of the victims’ right to an effective remedy (see Rizvanović, par. 9.5.). This is not the case for the ECtHR. The Court, being aware of the delay, rules that applicants are unable to prove that they would be eligible for the financial support from the Fund (see Fazlić and others, par. 47; Muratspahić, par. 40).

The second reason for a difference approach to compensation concerns the domestic law-based requirement that families must declare the disappearance of a person as his/her death so as to become eligible for a monthly stipend. Considering the dire financial situation of many, and the significant bread-winning role of those who have disappeared, many families have been coerced into making such declarations against their will. The HRC holds that this requirement and its effects on families amounts to inhumane and degrading treatment (see Rizvanović, par. 9.6.; Durić, par. 9.8.). The ECtHR does note that this domestic law may have created pressure on families, yet does not apply Article 3 of the ECHR to this issue (see Mujkanović and others, par. 49; Fazlić and others, par. 47).

In sum, the HRC is more attune to individual demands for compensation and is determined to consider them despite the broader justifications for delays in compensation put forward by the State authorities. The HRC operates with the presumption that the justice system should not lose sight of individual violations and victims. The ECtHR, in contrast, blocks individual claims by imposing demanding standards of proof without paying attention to the specific conditions faced by individual victims in the transitional context.

Appraising the differences

The analysis of relevant case-law through the lens of approaches to transitional justice, more specifically to justice, truth and reparation, reveals clear divergences between the ECtHR and the HRC. They differ on the basis of how they understand and execute retributive justice; how they appreciate the right of families to be informed and receive fair compensation; and how they assess the adequacy of general transitional policies adopted by Bosnia and Herzegovina from the perspective of individual victims. The ECtHR thus far has been more concerned with the broader aims of those general policies. To this end, it grants a wider margin of appreciation to Bosnia and Herzegovina and places a higher standard of proof on the applicant than the HRC.

What are the possible underlining reasons for these clear differences?

The ECtHR’s averseness to issuing individual measures of retributive justice in Strasbourg allows the Court to encourage and support ongoing domestic transitional justice processes in Bosnia and Herzegovina. This, however, comes at a cost to individual justice. The ECtHR asks the victims of gross human rights violations in transitional contexts to endure the delays of domestic processes and accept the burdens of inadequacies. It may also be the case that the Court has consciously opted for a pragmatic tradeoff; giving precedence to domestic law processes and remedies can effectively prevent the flood of cases before the ECtHR.

This view about the ECtHR’s deferential approach may be justified when we consider the resources needed to investigate a vast number of ongoing investigations. It is less convincing, however, when we consider the ECtHR’s approach to the treatment of victims’ claim to compensation, which fails to account for the particular vulnerability of victims of past crimes in transitional justice processes.

In contrast, the HRC appears to have adopted a more considered approach to balancing the interests of individual rights-holders with those of the duty-bearing State authorities, however well-intentioned and diligent they may be executing the processes and policies put in place by the transitional phase. Although it recognizes the particular difficulties States face in giving effect to the obligation to investigate and prosecute, the HRC resists the pragmatic zero-sum trade-off that suspends the rights of victims in individual cases and leaves them to the uncertain prospects of general transitional policies adopted by the State in its entirety. However, it must also be noted that the non-binding nature of the UN Committee views, coupled with the deference approach taken by the ECtHR, may impede Bosnia and Herzegovina to give an ear to the HRC.